Determining if Relocation Is in a Child's Best Interests
In Trudel v. Ward, the mother of a nine-year-old child diagnosed with autism sought to relocate with the child to Fergus, Ontario. The father responded by bringing an urgent motion to preclude her from relocating with their daughter. The issue was whether the Court should allow the mother to move to Fergus on a temporary basis prior to a trial of the matter.
The parties resided in the Ottawa Region. Per a Final Order made in 2014, the mother had sole custody of the child, who was diagnosed with autism when she was two years old. The father had parenting time with the child on alternate weekends, so long as he met certain conditions. The father alleged that the mother’s desire to relocate was aimed at undermining his relationship with their daughter. In her defence, the mother argued that she wanted to relocate their child because Fergus had better autism support services. Additionally, her cousin resided in Fergus and would be able to support the mother in caring for the child.
Gordon v. Goertz was the leading case determining whether a Court should make an order permitting relocation. This Supreme Court of Canada decision held that the focus of inquiry must be the child’s best interests, pursuant to the following considerations:
- The custody arrangement and relationship between the child and the custodial parent
- The access arrangement and relationship between the child and the access parent
- The desirability of maximizing contact between the child and both parents
- The child’s views
- The custodial parent’s motivation for moving (relevant to that parent’s ability to meet the needs of the child)
- How the change in custody may disrupt the child’s life
- How the removal from family, schools, and the community may disrupt the child’s life
Applying the principals of Gordon v. Goertz to Trudel v. Ward, Justice Audet of the Superior Court of Justice held that relocation was in the child’s best interests for several reasons.
First, it was undisputed that the mother had been the child’s primary caregiver. Despite the father’s position that the mother would deprive the child of his care if she moved to Fergus, the evidence showed that the father voluntarily reduced his parenting time, failed to pay child support for more than four years, and had anger management issues that made co-parenting difficult. The mother was the one who secured speech therapy and other educational supports for the child. The mother’s cousin in Fergus also had a child with autism and was familiar with support services in the area. Not only would the cousin be able to help with childcare, but also the two children would spend more time together. Other benefits of the move included the availability of applied behavioral analysis therapy at school, as well as having one educational assistant assigned to the child specifically. Although Fergus is some distance away from Ottawa, the child would still be able to spend time with the father every month, as per the mother’s proposed parenting schedule.
In reaching this decision, Justice Audet was particularly attuned to the fact that permitting a move before trial could establish a status quo that may impact the outcome of the trial. If a court finds a genuine issue necessitating a trial, it will generally be more reluctant to permit temporary relocation. However, a temporary relocation may be permitted if there is a strong possibility that the custodial parent’s position will prevail at trial.
Given the compelling circumstances demonstrating that relocation was in the child’s best interests in Trudel v. Ward, Justice Audet found that the mother’s position would likely prevail at trial and, therefore, permitted her to relocate to Fergus with the child.
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If you are considering relocation, or you believe your co-parent inappropriately relocated your child, Feldstein Family Law Group P.C. will help you determine the best course of action. With negotiation and litigation skills honed through years of experience, we will fiercely advocate for what you believe is best for your child.
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